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United States v. Quassani

United States District Court, D. Nevada

August 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAWAD “JOE” QUASSANI, Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         Defendant Jawad “Joe” Quassani moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, asserting three grounds for relief. ECF No. 149. The court denied ground two and ground three of the motion on September 28, 2016. ECF No. 155. After holding an evidentiary hearing in regards to ground one and after considering the parties' post-evidentiary-hearing memorandums, the court now denies ground one. Accordingly, Quassani's motion is denied in its entirety. The court also denies Quassani a certificate of appealability.

         I. BACKGROUND

         Quassani and his co-conspirators implemented a mortgage-fraud scheme designed to defraud lenders into issuing inflated mortgages and to generate kickbacks for Quassani and his co-conspirators. See EFC No. 155.[1] During the time in which the scheme was ongoing, Quassani used his position as a loan officer for a Las Vegas mortgage brokerage to assist a straw buyer in obtaining a mortgage. Id. To ensure that the straw buyer was approved for a mortgage large enough to purchase a property at an inflated asking price, Quassani listed the straw buyer's income on the mortgage application as more than three times his actual income. Id. Quassani also falsely indicated on the application that the straw buyer was purchasing the property for use as a primary residence. Id. Based on the false information, the straw buyer was approved for a loan, which was used to purchase the property and to fund the kickbacks received by Quassani and his co-conspirators. Id.

         After a three-day trial, a jury convicted Quassani of one count of conspiracy to commit wire fraud and mail fraud under 18 U.S.C. § 1349, two counts of wire fraud under 18 U.S.C. § 1343, and two counts of mail fraud under 18 U.S.C. § 1341. ECF No. 89. The court sentenced Quassani to a thirty-seven-month term of imprisonment. ECF No. 127. On appeal, the Ninth Circuit affirmed Quassani's conviction and the court's sentence. ECF Nos. 142, 146; United States v. Quassani, 593 Fed. App'x 627 (9th Cir. 2014).

         Quassani now brings a collateral attack of his conviction, moving to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. ECF No. 149. Quassani argues three grounds for relief: (1) ineffective assistance of counsel based on an alleged conflict of interest between Quassani and his attorneys as well as his attorneys' alleged failure to investigate potential key witnesses; (2) ineffective assistance of counsel based on his attorneys' failure to object to allegedly improper vouching and improper jury instructions; and (3) that his conviction was obtained by an unconstitutionally impaneled jury. Id. The court denied ground two and ground three on September 28, 2016, because the Ninth Circuit disposed of the same arguments in Quassani's earlier appeal. ECF No. 155. But the court did not deny ground one; the court instead ordered an evidentiary hearing to resolve the ambiguities concerning ground one. Id. Specifically, the court noted the vague nature of Quassani's claim of a conflict of interest with his attorneys and of Quassani's claim of his attorneys' failure to investigate potential key witnesses. Id. The court also ordered Quassani be appointed counsel for the hearing. Id.

         The evidentiary hearing occurred on June 14, 2017. Transcript of Evidentiary Hearing (“EH Transcript”), United States v. Quassani, No. 2:11-cr-00409 (D. Nev. June 14, 2017), ECF No. 183. Five witnesses provided testimony: (1) attorney Peter Christiansen, (2) attorney Richard Tanasi, (3) Jawad Quassani, (4) FBI agent Mark Staten, and (5) private investigator Arthur Von Ahn. See Id. Christiansen represented Quassani prior to trial as court-appointed counsel. ECF No. 29. Shortly before trial, Christiansen moved to withdraw as counsel, but his motion was denied. ECF Nos. 52, 57. Shortly thereafter, Quassani consented to be represented by Tanasi. ECF No. 70. Staten worked as the FBI agent assigned to Quassani's underlying case. EH Transcript at 98:24-25. Von Ahn worked on Quassani's case as a private investigator for Christiansen and Tanasi. Id. at 104:2-21.

         The witnesses provided testimony on several topics pertinent to Quassani's claim of ineffective assistance of counsel: (1) the trial theme and strategy of Quassani's defense: (2) the circumstances surrounding the alleged conflict of interest between Quassani and his attorneys; (3) the attorneys' alleged failure to investigate potential key witnesses; (4) Tanasi's opening statement at trial; (5) the decision that Quassani not testify at trial and the failure to conduct a mock examination; (6) the testimony and cross-examination of trial-witness Janet Lewis; and (7) the meetings shared between Quassani and his attorneys. See id.

         Trial Theme and Strategy

         Tanasi testified that he developed a trial theme for Quassani's defense: Quassani did not knowingly lie at any time on any of the loans. EH Transcript 38:15-16. Tanasi reiterated this theme throughout the evidentiary hearing. Id. at 36:19-22 (stating “our defense was going to be […] focusing on kind of that front end of the deals in the case and whether or not Mr. Quassani was truthful on the front end of the deals.”); id. at 37:3-4 (stating “the defense of […] Mr. Quassani wasn't lying at any point in this whole transaction[.]”); id. at 41:12-15 (stating “the strategy of the defense was […] Mr. Quassani didn't lie at any time.”); id. at 47:6-7 (stating “the bottom line on the defense was [Quassani] didn't know [about the inaccuracies on the reports, applications, or loan documents]”).

         To present the theme at trial, Tanasi testified that the defense focused on “the front end” of the mortgage-fraud scheme implemented by Quassani and his co-conspirators. Id. at 33:2-4. The “front-end” refers to Quassani's co-conspirators and to the documents relating to the fraudulent mortgage applications. Id. at 33:8-22.

         Conflict of Interest

         Christensen, Tanasi, and Quassani provided testimony regarding the alleged conflict of interest. See EH Transcript. Approximately one month before trial, Christensen moved to withdraw as Quassani's counsel, averring “[t]hat a conflict exist[ed] between [him] and Mr. Quassani, interfering with [Christiansen's] ability to provide competent representation.” ECF No. 52.

         Christiansen further explained the circumstances motivating his motion to withdraw at the evidentiary hearing. See EH Transcript at 12:1-13:25, 21:24-23:9. Christiansen stated that he “had concerns about the veracity of what [Quassani] said to the federal [authorities]” during a pre-trial proffer meeting for a parallel investigation into a similar matter. Id. at 12:11-13, 13:22-25. Christiansen later elaborated that his concerns were two-fold. Id. at 22:1-24: First, Christiansen believed that Quassani “had not been truthful” to the government agents, which compromised Christiansen's ability to place Quassani on the stand for questioning in front of the government agents. Id. at 22:6-10. Second, Christiansen learned from the proffer that Quassani showed “[sealed] discovery to other witnesses” and that Quassani allegedly had monies acquired from the scheme in the parallel investigation, making court-appointed counsel inappropriate for lack of indigency. Id. at 22:11-24. But Christiansen clarified that, to his recollection, he did not have a legal conflict of interest with Quassani. Id. at 23:6-9.

         Despite Christiansen's motion to withdraw being denied, Quassani agreed to be represented by Tanasi. ECF No. 70. In order to prevent “souring [Quassani's] relationship with anybody else, ” Christiansen testified that he chose to not disclose his opinion regarding Quassani's veracity to Tanasi. EH Transcript at 24:1-4. Rather, Christiansen kept his concerns “privileged to [him].” Id. at 24:4. Tanasi confirmed that he did not share any discussions with Christiansen regarding the circumstances leading to the motion to withdraw. Id. at 29:3-6.

         Quassani's allegations regarding a possible conflict consist of general characterizations. For example, he testified: “It's weird when I talked to [Christiansen]. It was not-it wasn't comfortable.” Id. at 57:17-18. Additionally: “I did not understand [Christiansen's] conflict.” Id. at 56:5-6. And further: “But as far as my understanding of conflict, I tried contacting Mr. Christiansen a few-few-lots of times, and every time […] [I] was referred to Archie, the investigator.”[2] Id. at 56:7-10. Finally, Quassani admitted that “hundreds of thousands of dollars” were deposited into his bank account in 2011 through 2012. Id. at 95:6-13. But Quassani still contended that he “did not have money to retain an attorney at that time.” Id. at 97:3-4.

         Investigation of Potential Witnesses

         Tanasi, Quassani, Staten, and Von Ahn each provided testimony in regards to Quassani's allegation that the attorneys failed to investigate potential key witnesses. See EH Transcript.

         Tanasi testified that he spoke with a potential witness named Anthony Brandel. EH Transcript at 35:19-20. He explained that Brandel did not testify for two reasons. Id. at 35:24-25. First, Brandel lacked “any real specific knowledge” of the issues in the case. Id. at 36:1-2. Therefore, Brandel's potential testimony was limited to character testimony about Quassani. Id. at 36:2-8. Tanasi explained that the defense chose not to offer character evidence on behalf of Quassani because “there were some concerns that could have come to light that could have rebutted the good-guy defense.” Id. at 35:2-4. Second, Brandel did not testify because of impeachment concerns.[3] Id. at 36: 9-10.

         Tanasi also testified that Quassani made “witness-related requests.” Id. at 37:17. However, the potential witnesses identified by Quassani failed to provide any information about the issues of Quassani's case. Id. at 38:1-5. Therefore, like Brandel's potential testimony, the potential witnesses' testimony was limited to character evidence. Id. at 38:6-8. Given the potential witnesses' lack of personal knowledge of the facts at issue, Tanasi testified that he could not recall any witness who could have undermined the government's trial evidence. Id. at 49:18-50:5. Further, Tanasi clarified that one potential witness-Ann Cui-would damage Quassani's defense. Id. at 50:15-20. He based his opinion on statements Cui included in her FBI 302 report for the investigation into the mortgage-fraud scheme. Id.at 50:15-25.

         Quassani testified that he also requested his attorneys contact John Panich. Id. at 76:19- 21. However, when questioned by Staten during the FBI investigation into the mortgage-fraud scheme, Quassani failed to mention any other potential witnesses. Id. at 100:1-17, 102:14-17.

         Finally, Von Ahn testified that he attempted to find witnesses who could testify in Quassani's defense.[4] Id. 104:22-25. He spoke to Cui, Brandel, Peyman Kermanshahi, and Jaime Pena. Id. at 105:22-106:1. Von Ahn testified that Cui's testimony “would be very damaging” to Quassani's defense, which he opined based off her FBI 302 report. Id. at 107:9-21. Von Ahn also testified that the other potential witnesses could not provide personal knowledge or facts helpful to Quassani's defense. Id. at 108:2-20. When asked if he came across any evidence suggesting that other witnesses could corroborate Quassani's innocence, Von Ahn testified that he did not. Id. at 108:21-109:1.

         Von Ahn also attempted to physically locate Panich but was unsuccessful. Id. at 106:3- 13. Von Ahn “believe[s] […] that [he had] a telephone conversation with Mr. Panich, ” because Tanasi listed Panich as a character witness in his notes. Id. at 106: 7-13. Tanasi would have received the information regarding Panich's potential testimony only from Von Ahn. Id. at 106:15-16.

         Opening Statement at Trial

         At the evidentiary hearing, Tanasi was asked to recall the following line from his opening statement at trial: “Because those witnesses are the ones, the only witnesses, as the evidence will show, that can come into this courtroom and tell you that Mr. Quassani knowingly participated in a conspiracy.” EH Transcript at 39:2-20. The statement refers to Quassani's co-conspirators and the straw buyer. Id. While Tanasi remembered the isolated statement, the following excerpt from Tanasi's opening statement is relevant for context:

And in this case, there will be a lot of documents, and there will be a lot of exhibits that you will have to sort through, and you will hear from witnesses. But I'll submit to you that the witnesses you hear from, the most important witnesses you hear from are Mr. Butler, Miss Mathur, and Mr. Qureshi. Because those witnesses are the ones-the only witnesses, as the evidence will show-that can ...

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